EXHIBIT 10.3
Convenience Translation
Reorganisation Agreement
(Post-Formation acquisition and capital contribution agreement)
(1) The INTERSHOP Communications stock company, Hamburg (the "INTERSHOP AG")
and
(2) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(3) ▇▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(4) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(5) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(6) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(7) ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
(8) Advanced European Technologies N.V.
(9) Strascheg & ▇▇. ▇▇▇▇▇▇ Beteiligungsgesellschaft bR
(10) Technologieholding-Fonds VBL GmbH
(11) Innovacom 2 S.A. (France Telecom)
(12) T-Telematik Venture Beteiligungsgesellschaft mbH
(13) Private Equity Bridge Invest Ltd.
(14) CFB Consens Finanzberatung GmbH
(15) Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(16) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(the ,,Investors")
and
(17) INTERSHOP Communications, Inc.
(the "INTERSHOP Inc.")
enter into the following post-formation acquisition and capital contribution
agreement:
I.
Preamble
a) On April 23, 1998 the Provista Dritte Vermogensverwaltungs-
Aktiengesellschaft, located in Hamburg (the ,,PROVISTA AG") has been
founded by notarial deed No. 934/1998 of the notary public ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
in Hamburg. The company was registered in the Commercial Register under No.
HRB 67465 on May 25, 1998.
By purchase and assignment agreement of May 26, 1998, the INTERSHOP
Communications GmbH, Jena, purchased all shares in the PROVISTA AG. The
name PROVISTA AG was changed into INTERSHOP AG Aktiengesellschaft on May
26, 1998. This change was entered into the Commercial Register on June 16,
1998.
In order to increase the share capital of the INTERSHOP AG, the Investors
will contribute the shares described in more detail below (the ,,Shares")
in the INTERSHOP Communications Inc., San Francisco (the ,,INTERSHOP Inc.")
into the INTERSHOP AG by means of a contribution in kind.
b) The share capital of the INTERSHOP Inc. is composed of a total of
12,387,500 ordinary shares (the "Ordinary Shares"), 5,000,000 preferred
shares (the "Preferred Shares") of the A series, 6,200,000 Preferred Shares
of the B series, 2,000,000 Preferred Shares of the C series, as well as
389,848 Preferred Shares from the D series. The Shares mentioned are bearer
shares without par value. The following shareholders hold the following
shares in the INTERSHOP Inc.:
(1) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 4,900,000 Ordinary Shares,
(2) ▇▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 750,000 Preferred Shares of the A series as
well as 470.000 Preferred Shares of the B series,
(3) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 2,160,000 Ordinary Shares,
(4) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,710,000 Ordinary Shares,
(5) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 360,000 Ordinary Shares,
(6) ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ 360,000 Ordinary Shares,
(7) Advanced European Technologies N.V. 3,850,000 Preferred Shares of the
A series as well as 2,390,000 Preferred Shares of the B series,
(8) Strascheg & ▇▇. ▇▇▇▇▇▇ Beteiligungsgesellschaft bR 212,000 Preferred
Shares of the B series,
(9) Technologieholding-Fonds VBL GmbH 1,540,000 Preferred Shares of the B
series,
(10) Innovacom 2 S.A. (France Telecom) 1,550,000 Preferred Shares of the B
series,
(11) T-Telematik Venture Beteiligungsgesellschaft mbH 2,000,000 Preferred
Shares of the C series,
(12) Private Equity Bridge Invest Ltd. 510,000 Ordinary Shares, 400,000
Preferred Shares of the A series, 38,000 Preferred Shares of the B
series as well as 389,848 Preferred Shares of the D series,
(13) CFB Consens Finanzberatung GmbH 100,000 Ordinary Shares,
(14) Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 37,500 Ordinary Shares,
(15) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,250,000 Ordinary Shares.
II.
Contribution of Shares
a) The Investors mentioned in Section I. b (3)-(15) contribute the mentioned
Shares with obligatory effect until June 1, 1998 as a contribution in kind
to the capital of the INTERSHOP AG.
b) The Investor mentioned in Section I b. (1) contributes a total of 490,000
of the mentioned shares with obligatory effect until June 1, 1998 as
contribution in kind to the capital of the INTERSHOP AG.
c) The Investor mentioned in Section I. b (2) contributes a total of 244,000
of the mentioned Preferred Shares of the A series with obligatory effect
until June 1, 1998 as a contribution in kind to the capital of the
INTERSHOP AG.
d) The Investor mentioned in Section I. b (1) is entitled to contribute
4,410,000 of the mentioned Shares as a contribution in kind to the capital
of the INTERSHOP AG at any time. The contribution can only be declared with
regard to all Shares.
The declaration of the Investor mentioned in Section I. b (1) is to be
posted to the INTERSHOP AG by registered mail return receipt including a
statement of warranty signed by the Investor mentioned in Section I. b (1)
stating that the Investor mentioned in Section I. b (1) is the owner of the
Shares to be contributed pursuant to this Subsection (d), that the Shares
to be contributed are not charged with third party rights, that the Shares
to be contributed do not constitute the entire or nearly entire property of
the Investor mentioned in Section I. b (1), and that he can freely dispose
of the Shares to be contributed.
e) The Investor mentioned in Section I. b (2) is entitled to contribute
976,000 of the mentioned Preferred Shares of the A series as a contribution
in kind to the capital of the INTERSHOP AG at any time. The Contribution
can only be declared with regard to all Shares.
The declaration of the Investor mentioned in Section I. b (2) is to be
posted to the INTERSHOP AG by registered mail return receipt including a
statement of warranty signed by the Investor mentioned in Section I. b (2)
stating that the Investor mentioned in Section I. b (2) is the owner of the
Shares to be contributed pursuant to this Subsection (e), that the Shares
to be contributed are not charged with third party rights, that the Shares
to be contributed do not constitute the entire or nearly entire property of
the Investor mentioned in Section I. b (2), and that he can freely dispose
of the Shares to be contributed.
III.
Transfer
a) The Investors mentioned in Section I. b (1) - (15) herewith transfer the
Shares contributed pursuant to Section II. a)-c) with immediate effect to
the INTERSHOP AG.
The Share certificates had been handed over to the board of directors of
INTERSHOP AG today.
b) The Investors mentioned in Section I. b (1) - (2) transfer the Shares
contributed pursuant to Section II. d)-e) to INTERSHOP AG under the
condition precedent that the contribution of the Shares mentioned in
Section II. d)-e) has been declared by the Investors vis-a-vis the
INTERSHOP AG.
c) The INTERSHOP Inc. represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ has agreed to the
transfer of Shares by the Investors in accordance with the articles of
incorporation of INTERSHOP Inc. The written statement of consent is
enclosed to this document for reasons of evidence as Exhibit A.
d) The INTERSHOP AG has the claim to the profits attached to the Shares
contributed pursuant to Section II. a)-c) starting January 1, 1998.
e) The INTERSHOP AG has the claim to the profits attached to the Shares
contributed pursuant to Section II. d)-e) starting at the time of transfer.
IV.
Representations and Warranties
a) Each of the Investors represents and warrants that the information given
with regard to that person in Section I. b) is correct, that the
contributed Shares do not constitute their entire or nearly entire
property, that the Shares are not charged with third parties rights and
that they can dispose freely of their Shares.
b) The Investor mentioned in Section I. b (1), ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, further
is liable for that no further Shares in INTERSHOP Inc. are issued, except
for the Shares mentioned in Section I. 2.
c) The INTERSHOP AG had had the possibility to examine the property, finance,
and profit situation of the INTERSHOP Inc. for the business year 1997
through the balance sheets of the INTERSHOP Inc. certified by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ as well as to examine the business administrative evaluation for
the first five months of the business year 1998.
The Investor mentioned under Section I. b (1), ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
represents and warrants
- that the INTERSHOP Inc. in the context of the explanation of these
documents has from its knowledge not concealed any information that
could be relevant for the evaluation of the property and profit
situation, and
- that no events or developments have occurred through the months from
January to June 1998 that could impair the property and profit
situation.
V.
Consideration
a) In consideration for the contributions agreed upon in Section II. a)-c) the
INTERSHOP AG grants:
(1) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 98,000 ordinary shares without par value;
(2) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 432,000 ordinary shares without par value;
(3) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 342,000 ordinary shares without par value;
(4) ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 72,000 ordinary shares without par value;
(5) ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ 72,000 ordinary shares without par value;
(6) Advanced European Technologies N.V. 1,248,000 ordinary shares without
par value;
(7) Strascheg & ▇▇. ▇▇▇▇▇▇ Beteiligungsgesellschaft bR 42,400 ordinary
shares without par value;
(8) ▇▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 48,800 ordinary shares without par value;
(9) Technologieholding-Fonds VBL GmbH 308,000 ordinary shares without par
value;
(10) Innovacom 2 S.A. (France Telecom) 310,000 ordinary shares without par
value;
(11) T-Telematik Venture Beteiligungsgesellschaft mbH (Deutsche Telekom AG)
400,000 ordinary shares without par value;
(12) Private Equity Bridge Invest Ltd. 267,570 ordinary shares without par
value;
(13) CFB Consens Finanzberatung GmbH GmbH 20,000 ordinary shares without
par value;
(14) Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 7,500 ordinary shares without par value;
(15) ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 450,000 ordinary shares without par value.
with an issuing price of DM 70,010,590 and with the claims to the profits
starting with the establishment of the company.
The new Shares shall be created by means of a capital increase
from DM 300,150
by DM 20,591,350
to DM 20,891,500
with in kind contribution.
b) In consideration for the contribution agreed upon in Section II. d)-e) the
INTERSHOP AG grants:
(1) ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 882,000 Ordinary Shares without par value;
(2) ▇▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 195,200 Ordinary Shares without par value;
for an issuing price of DM 18.312.400 and with the claims to the
profits starting with the fulfilment of the condition precedent
pursuant to Section II. d)-e).
The claim of granting the mentioned Shares arises only on the
fulfilment of the condition precedent pursuant to Section II. d)-e).
The new Shares shall be created by a conditioned capital increase
through a contribution in kind in the amount of up to DM 5,386,000.
VI.
Conditions Precedent
This agreement becomes effective only after the fulfilment of the following
conditions precedent:
(1) The general meeting of shareholders of the INTERSHOP AG agrees to this
contract.
(2) The general meeting of shareholders of the INTERSHOP AG passes the
following resolutions:
a) The principal capital of the company of DM 300,150 at the moment is
increased by DM 20,591,350 to DM 20,891,500.
b) The subscription by law of the shareholders is precluded.
c) With regard to the capital increase mentioned under Subsection (a) the
following has to be noted:
- ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is admitted to the procurement of 98,000
ordinary shares
- ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is admitted to the procurement of 432,000
ordinary shares
- ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is admitted to the procurement of 342,000
ordinary shares
- ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is admitted to the procurement of 72,000
ordinary shares
- ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ is admitted to the procurement of 72,000 ordinary
shares
- Advanced European Technologies N.V. is admitted to the procurement
of 1,248,000 ordinary shares
- Strascheg & ▇▇. ▇▇▇▇▇▇ Beteiligungsgesellschaft bR is admitted to
the procurement of 42,400 ordinary shares
- ▇▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is admitted to the procurement of 44,880
ordinary shares
- Technologieholding-Fonds NBL GmbH is admitted to the procurement of
308,000 ordinary shares
- Innovacom 2 S.A. (France Telekom) is admitted to the procurement of
310,000 ordinary shares
- T-Telematik Venture Beteiligungsgesellschaft mbH (Deutsche Telekom
AG) is admitted to the procurement of 400,000 ordinary shares
- Private Equity Bridge Invest Ltd. is admitted to the procurement of
267,570 ordinary shares
- CFB Consens Finanzberatung GmbH is admitted to the procurement of
20,000 ordinary shares
- Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is admitted to the procurement of 7,500 ordinary
shares
- ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is admitted to the procurement of 450.000
ordinary Shares
for an issuing price of DM 17 per each ordinary share.
VII.
Choice of Law, Place of Jurisdiction
This agreement is subject to the laws of the Federal Republic of Germany. The
place of jurisdiction is Hamburg.
VIII.
Severability
Should individual terms of this agreement be wholly or partly be or become in-
effective or non applicable or should there be a loop hole in the agreement, the
validity of the remaining parts of this agreement shall not be effected. Instead
of the in-effective or inapplicable provisions or for the replacement of a loop
hole, a replacement of the provision is to be created which as far as possible
comes close to what the contracting parties wanted to express or expressed if
they had considered this term.
IX.
Costs
The INTERSHOP AG located in Hamburg bears the costs of this agreement and its
execution.
Hamburg, the 22/nd/ June 1998
_______________________________________ ______________________________________
INTERSHOP Communications AG INTERSHOP Communications, Inc.
_______________________________________ ______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Strascheg & ▇▇. ▇▇▇▇▇▇
Beteiligungs GbR
_______________________________________ ______________________________________
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Technologieholding-Fonds NBL GmbH
_______________________________________ ___________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Innovacom 2 S.A. (France Telecom)
_______________________________________ ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ T-Telematik Venture Beteiligungs-
gesellschaft mbH
_______________________________________ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Private Equity Bridge Invest Ltd.
_______________________________________ ___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇ CFB Consens Finanzberatung GmbH
_______________________________________ ___________________________________
Advanced European Technologies N.V. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________ ___________________________________
Christof Leiste